GENERAL SECTION
Kentucky Enacts Voluntary
Environmental Remediation Program

INTRODUCTION
The Commonwealth of Kentucky established a voluntary environmental remediation program (VERP) on March 20, 2001. The legislation will become effective in June and completes a legislative process that has continued for the past several years. Prior to this, properties could be addressed only on a site-by-site basis through the Superfund Program of the Natural Resources and Environmental Protection Cabinet (“Cabinet”). The two existing federal “Brownfields grant communities” (i.e., Louisville and Covington) address only a small fraction of the potential Brownfields sites across Kentucky.

STIMULATE ECONOMIC DEVELOPMENT AND JOB CREATION
The new legislation authorizes the promulgation of rules and standards by the Cabinet that will promote voluntary cleanup and redevelopment of properties suspected of environmental contamination. The legislation establishes requirements for the issuance of a covenant not to sue (CNS) from Kentucky and provides for meaningful public participation and financial incentives, notably through the establishment of “the Agricultural Warehousing Sites Cleanup Fund.”

PROGRAM REQUIREMENTS FOR THE APPLICANT
To enter the VERP, an applicant must establish eligibility, complete an application form, identify any materials released at the site and an associated plan for characterization, submit an application fee, publish a notice of application in a specified local newspaper, notify the chief executive of the local government of the application, and possibly notify the Department for Public Health, if required. Once an application is approved, the applicant and the Cabinet enter into an agreed order identifying the suspected contaminants, a proposed characterization plan, and a proposed schedule for the characterization report, corrective action plan (including identification of petroleum storage tanks and intended compliance), and corrective action report certifying cleanup. As documents are generated for the property, they are to be made available in the local public library.

OVERSIGHT AND PUBLIC PARTICIPATION REQUIREMENTS
As part of the agreed order, provisions are established (unless waived) for the reimbursement of all reasonable actual and necessary costs of review and oversight by the Cabinet that exceed the application fee. Prior to submitting the corrective action plan to the Cabinet, advance notification is required to the local government and newspapers of the proposed plan and the property is to be posted with signs indicating a remedy is in progress. The corrective action plan includes a plan to inform the public about the remediation and redevelopment and provide for meaningful public comment. The applicant may withdraw from the agreed order upon payment of any oversight costs.

REMEDIATION STANDARDS AND MANAGEMENT OPTIONS
Within one year of the effective date of this act, the Cabinet shall promulgate regulations establishing standards with respect to hazardous substances, pollutants, contaminants, petroleum, or petroleum products. U.S. EPA Region 9 preliminary remediation goals are established as screening levels, but specifically not as cleanup standards. Within one year, the Cabinet shall promul-gate regulations addressing tiered remediation management options to address current and proposed land uses, zoning, and the nature and extent of contamination.

SUMMARY
Kentucky’s new VERP legislation will establish a framework for voluntary remediation in the Commonwealth to receive state liability protection. The framework of the legislation appears to also meet federal guidelines for meaningful public participa-tion and significant state oversight. The Payne Firm will monitor the promulgation of the Kentucky regulations and provide updates. For more information, please contact Don Fay, Dan Weed, or Michael Woodruff at 513-489-2255 or toll free at
800-229-1443 or through email at daf@paynefirm.com, ddw@paynefirm.com, or mlw@paynefirm.com.